Wearing an expensive linen dress, I hear the
soothing ballad, smell the lilies, and feel the warmth of the
morning rays while watching my perfectly-dressed & faced
children run around my upper-class neighborhood. I blink, and find
myself in a size-2 designer suit running a fancy corporation, with
perfectly-coifed hair and meticulously colored nails. I blink
again, and enjoy a stroll down the beach with my loved one. My
vision is abruptly interrupted, however, by obnoxiously dark,
blocky letters and numbers. I step back, pause a little, and remind
myself of why I was at the grocery store.

As one strolls down a grocery aisle, shift through
the maze of cosmetic counters, or sit in front of the television,
one is transported into various fantasies, identities, and
scenarios. The power of advertisements and package designs to
influence the consumers has grown tremendously over the years. Food
and cosmetic manufacturers, cognizant of this power, have invested
an enormous amount of their resources into the both advertising and
packaging – so much so that a fissure has formed between the
“image” and the “actuality” of the product.
Manufacturers pry on the consumers becoming more impulsive and
vulnerable, and the amplification of the product’s
“image” has helped this cause. No agency or body of law
is curtailing this growth and use of the power except the Food and
Drug Administration. Through its stringent labeling regulations
throughout this century, the FDA has limited how far the
manufacturers can go with their package designs. By imposing its
numerous requirements, the FDA has provided the consumers with an
“awareness,” and room to dilute the appeal of the
“image.” In this sense, the FDA is going far beyond the
realm of its traditional role: a “policeman”[1] who “serves the public
interest”[2] by “ensur[ing] that food is safe, pure, and
wholesome...[and that] cosmetics are safe....”[3] The FDA, like, the postmodern artist Barbara Kruger,
is serving a significant cultural and political role.
Please note that to keep this essay at a manageable length, I will
discuss only foods and cosmetics to illustrate my theses.

The “Power” of Advertising and
Packaging

The advertisements and the packages that food and
cosmetics manufacturers create to promote their products exercise
tremendous power in our society. By “power,” I am not
referring to its traditional interpretation – the notion that
power is constituted or embodied in a sovereign, state, or judicial
apparatus and that it requires the constant presence of an agent to
apply force. I am referring, instead, to the modern
definition of power that has been developed during the past few
decades. In the new definition, power is less concrete than the gun
or the police stick: it is subtle, appeals to our emotions, and is
consonant with the autonomous self.

The ubiquitous ads and packages are powerful
because of, interestingly, the subtle ways in which they
effect the consumers. According to Michael Foucault, the father of
the “modern” interpretation of power, power operates
through “delicate and minute infiltration” into the
very interior of our existence.[4] It is not exerted through physical violence but
through symbolic effects. He states, “What makes [power]
accepted is simply the fact that it does not weigh like a
force...but that it runs through, and it produces, things, it
induces pleasure, it forms knowledge, it produces discourse;
it...runs through the entire body much more than a negative
instrument whose function is repression.”[5] The messages, designs, and images contained in the
ads and packages do not push, squeeze, hit, yell at, or even beg
the consumer. Unlike the police stick that strikes only the surface
and from afar, the ads and packages are able to penetrate
the consumer at the most profound level through their subtlety.

The ads and packages are powerful also because they
bypass the rational and go straight to the emotions and the
subconscious. Ads and packages deploy powerful images and graphics
that the brain is able to grasp without conscious analysis. Thomas
Hine, the author of The Total Package emphasizes
packaging’s “unique,” “communicative”
power.[6] He states, “Emotion can be seen as a very
rapid means by which human process information. And no field of
design deals more effectively with the emotions than does
packaging.”[7]

One important way in which ads and packages effect
the consumers’ emotions is through their careful portrayals
of the “ideal.” They create the binary opposition of
whole/lacking, and consequently trigger anxieties among the
consumers. The consumer cannot help but compare himself to the
“perfect” representations of life presented to him.
Life is to imitate the stereotypical images of joy, warmth,
achievements, and conviviality presented on the packages and
advertisements. Social philosopher Nikolas Rose articulates the
anxiety is Governing the Soul :

[These images provide] the template against which
the mundane dissatisfaction of our lives, the hesitancies and
uncertainties of our speech, the embarrassed awkwardness of our
intercourse with others, the clumsy fumblings of our loves and
passions are to be judged.[8]

Keenly aware that the “ideal” is
constantly evolving, manufacturers invent and reinvent their ads
and packages. They listen closely to the so-called “lifestyle
analysts.” When these analysts declared in 1988, for example,
that “materialism” is “out” and
“simplicity” is “in,” the companies were
paying attention.[9] They replaced the “black, gold, and white
palette” associated with the “Reagan-era expensive
opulence” with the “Nineties clarity, purity,
naturalness and intimacy.”[10]

The ads and packages are also powerful because they
fashion and legitimize the consumer’s wants and behavior
while preserving the consumer’s sense of autonomy. The
control, therefore, is free of resistance. According to
Foucault, power is efficacious because it is consonant with the
concept of the autonomous and responsible self. Power recognizes
the desire of “the other” (the one over whom power is
exercised) to regulate his conduct and existence for his own
welfare. Power acts not through subordination of the will but
through “the promotion of
subjectivities.”[11] In his essay “Subject and Power,”
Foucault states that power thoroughly recognizes and maintains to
the very end “the other” as a person who acts .
Objectification entails a training in the minute arts of
self- scrutiny, self -evaluation, and self-
regulation. The ads and packages possess this power; they place a
constant hold on the consumer through the facade of preserving the
autonomy of the individual. Because the images remain within the
repertoire of wants, the individual views his actions as stemming
from his free choice. Consumers, in buying Coke, Wheaties cereal,
and L’Oreal lipstick, do not believe that their decisions
were shaped. They see their actions as being directly linked to
their personal choices, their personal needs. With phrases like
“it’s your decision,” “you are an
intelligent consumer,” and “choose wisely,” the
ads and packages reinforce such a belief.

The power of the ads and packages has increased and
will continue to increase tremendously with the growth of
technologies. The media that circulate advertisements of foods and
cosmetics, like the magazine, newspaper, and television industries
(and now the internet) are growing everyday. The mechanisms aimed
at improving transmission speeds and facilitating image
reproductions are being fine-tuned at incredible levels. The
potential for ads to reach and effect the consumers appear
limitless at this point. Similarly, the packaging industry is
evolving and growing to maximize the potential of the manufacturers
to influence the consumers. The new technologies are allowing
packages to become more and more unusual and eye-catching in
shapes, colors, and proportions. In the article, “New
Packaging Technologies,” Dr. Testin predicts that
computerized printing technologies will “revolutionize the
options for package printing.”[12] They will allow for “high speed, rapid
changeover, and customized printing on all food packaging where
such features are desired.[13]

Manufacturers’ Recognition and
Utilization of That Power

Understanding the power of ads and packages today,
as well as their growing potential to effect consumers in the
future, food and cosmetic manufacturers have increased their
investment in their development. Increasing spending on advertising
seems to be the first strategy that food and cosmetic companies
turn to when they become ambitious. Campbell, for example,
announced in September 1996 that it will increase worldwide
advertising spending in order to “grow Campbell to the next
performance level.”[14] Pepsi-Cola, announced in October 1997 that it will
“substantially” increase its advertising spending the
following year as it introduces new packaging for its flagship
drink.[15] In December 1998, Avon Products, in order to
“enhance [its] position as a world-class beauty brand,”
decided to increase global advertising spending from 1.3% of total
sales in 1997 to approximately 3% of total sales by the year
2000.[16]

The fact that advertisement spending continues to
rise, even when times are bad and other operating costs are being
reduced, shows how crucial manufacturers feel the spending is in
their business. Several specific instances illustrate this
behavior. Although sales growth for Nestle was only 5% in 1984, it
planned to increase its advertisement spending by 20% the following
year.[17] When Coors Banquet beer sales dropped 8% in 1987
due to growing competition from Miller Brewing Co.’s Genuine
Draft , the company decided to increase its advertisement budget by
35%.[18] To stimulate sales growth in 1996, Grand
Metropolitan, the owner of Burger King, Pillsbury, and Smirnoff,
spent substantially more on advertising while cutting all other
costs.[19] Also, as the competition in the cereal business
became fierce in the early 1990s, the big brands, instead of
cutting prices to compete, “turn[ed] up the
advertising.”[20] The juice companies did the same. In 1995, when
the juice category was the second-fastest-growing part of the
beverage industry after bottled water, beverage giants turned to
advertisements, instead of lowering prices to compete in the
so-called “juice war.” Coke invested $30 million to
advertise its new Frutopia line of juice drinks in 1994, and
planned to spend $67 million to advertise its Hi-C, Five Alive and
other juice-drink businesses in 1995.[21] Pepsi, in the meantime, sharply increased its
advertising budget for Ocean Spray to $40 million in 1995. These
reactions by such giant suppliers show where their priorities are;
and their priorities most accurately reveal what works most
effectively in the market.

Also recognizing the actual and potential
“power of package design,”[22] manufacturers have spent more and more resources
on packaging throughout the years. According to Thomas Hine, this
increase is a recent phenomenon; the emphasis on packaging came at
a time “when television had fragmented into a multitude of
niche channels, and fewer and fewer women were at home during the
day to watch the commercials that have traditionally established
national brands.”[23] Because the number of products being advertised on
television has been decreasing, packaging has become “the
principal way in which a new product gets noticed.”[24] Companies keep the budget for packaging large not
just to introduce packaging for new products, but also to redesign
the packages of the existing products. As noted earlier (e.g., the
Reagan opulence v. 90s’ simplicity), packaging style,
“so suitable for a particular moment in history, might easily
become outdated.”[25] Major food and cosmetic manufacturers have spent
enormous amounts of resources into give their products “a new
look.” In 1994, for example, Coke invested $100 million to
restyle its Minute Maid juice packaging, “the most expensive
such remake in the history of its foods division.”[26] Similarly, Triarc introduced new packaging for its
Snapple, Mistic and Royal Crown cola drinks in 1997-98 “to
boost sales.”[27] Manufacturers have also considered extremely
meticulous and somewhat surprising details when designing packages.
Thomas Hine describes:

Designers have worked and reworked the design on
their computers and tested mock ups on the store shelves.
Refinements are measured in millimeters.... Market researchers have
conducted surveys of consumer wants and needs, and consultants have
studied photographs of families’ kitchen cupboards and
medicine chests to get a sense of how products are used. Test
subjects have been tied into pieces of heavy apparatus that measure
their eye movement, their blood pressure or body temperature, when
subjected to different packages. Psychologists get people to talk
about the packages in order to get a sense of their innermost
feelings about what they want.[28]

As is the case with advertising, the fact that
manufacturers are devoting so much time, money, and effort into
packaging illustrates how important manufacturers consider
packaging to be in selling a product.

The Effects of Such Recognition and
Utilization

The results of such heavy and thought-out
investments in advertising and packaging are twofold. The first is
that the ability of advertisements and packages to influence people
improves dramatically, while the products themselves remain
virtually the same in quality and character. A gap develops,
therefore, between the idea and the actuality of the
product. The gap most obviously and rudimentarily exists at the
cost level. According to Consumer Reports , the ingredients
of a lipstick (whether it is a $2 no-name brand or an $18 famous
brand), cost the manufacturer a dime out of every dollar a consumer
spends on a lipstick. Twice as much, however, goes into “the
illusion” created by packaging and advertising.[29] Similar discrepancy exists in the cereal industry.
According to a cost breakdown presented by a marketing analyst in
1991, raw materials account for just 8% of the cereal’s
wholesale price. Advertising and packaging budgets, however,
account for as much as 30%.[30] These differences in cost bring about fancy
containers and glamorous advertisements that move farther and
farther away from conveying what the actual product is about. A
1993 issue of Consumer Reports commented that advertisements
“reek of status, romance, mystery, or sex...[b]ut tell you
nothing about what’s inside” the product.[31] Beneath the “ideal” images, therefore,
are the products themselves that get ignored and oftentimes remain
generic. Thomas Hine points out that packaging can give “a
powerful image” to products that are “in themselves
characterless”; it is, he continues, sometimes “what
makes the product possible.”[32] Furthermore, products are “improved”
by simple changes in advertising and packaging; companies can
“reposition” a product to appeal to new customers,
without touching the actual product itself.[33] The stainless-steel fork in the Rice-a-Roni
package was replaced in the late 1980s, for example, with a silver
one to give the package a more upscale look. Breyers Ice Cream got
a new logo and a black carton for the same reason.[34]

The second outcome, which is closely related to the
first, is that people are buying less according to what they
actually need in the products, and more according to what the ads
and the packages depict. The famous profile of Absolute vodka
brings up a clear example of how consumers are buying the packaging
and not the product. The Absolute manufacturers use well-known
artists and designers to celebrate and re-celebrate the
bottle’s shape. The contour, consequently, becomes embedded
in people’s minds as being associated with status,
creativity, and culture. Other vodka manufacturers try to follow
Absolute’s example. “The whole vodka aisle,”
therefore, has become “a bottle beauty
contest.”[35] Consumers can buy a whole range of personalities,
lifestyles, moods , etc. through the products they pick. They can
buy, for instance, “good taste” by purchasing products
with fancy packaging and glamorous advertising. Whatever the
quality of a Lancome, Estee Lauder, or Chanel lipstick may be, one
may rest assured, says the ads, that the package is
“luxurious” and “discreet.” Similar
messages underlie so many of the advertisements and package designs
we are bombarded by everyday. Moreover, in times of economic
uncertainty, one can buy products encased in glittery packages with
full-color graphics that “imply upscale lifestyles” and
“offer a strong voice of reassurance.”[36] Such packages promise “a way of maintaining
your standard of living, even of being able to move up a little,
without having to pay very much more than you can
afford.”[37]

Advertisements and packages can be, and were
originally designed to be, valuable sources of information for the
consumers. Clearly aware of the their power to impress, however,
manufacturers have continued to invest excessively on their
development and proliferation. The consumers, therefore, have
become more impulsive and vulnerable, oftentimes overpaying for
products that they do not really need. This is the context in which
one should view and appreciate the significance of the FDA’s
labeling regulations.

A Curtailment of the Power

The FTC and Intellectual Property Law

No agency or body of law, outside of the FDA,
appears to be creating a significant check on the growing power
exercised by the manufacturers. The only limitation that
advertisements are potentially subject to is that imposed by the
Federal Trade Commission (“FTC”). This limit, however,
is a weak one. The only check that may be imposed on package design
is that offered by intellectual property law. This check, however,
is aimed at protecting manufacturers, not consumers.

According to the Wheeler-Lea Amendments of 1938, 52
Stat. 111, 114, the FTC has the authority to regulate food
advertising, and FDA has the primary responsibility for food
labeling. Product labeling includes “packaging, inserts, and
other promotional materials distributed at the point of
sale.”[38] Advertising includes “print and broadcast
ads, infomercials, catalogs, and similar direct marketing
materials.”[39] According to Sections 14 and 15 of the FTC Act
(which the Wheeler-Lea Amendments added), the FTC expressly forbids
any food advertisement which is “misleading in a material
respect.”[40] This prohibition, however, is based on a
“reasonable standard,” which is very
“flexible” compared to FDA’s “stringent
standard of scientific proof” for food labeling.[41] The FTC articulated the reasonable standard in two
policy statements. In a letter to Congress in October 1983, the FTC
stated that in determining whether an advertisement is in violation
of the FTC Act, “it will be examined ‘from the
perspective of a consumer acting reasonably in the
circumstances.’”[42] In 1984, the FTC added that advertisers must
“’have a reasonable basis for advertising claims
before they are disseminated’” and that
‘”what constitutes a reasonable basis depends, as it
does in an unfairness analysis, on a number of factors relevant to
the benefits and costs of substantiating a particular
claim.’”[43]

FTC’s flexible standard has allowed
manufacturers to be relatively free in fashioning their
advertisements. Some claims that are not allowed to be made on food
packages are permissible in food advertisements.[44] Also, the FTC only scrutinizes/strikes what is
already said or displayed; the FTC, unlike the FDA, rarely requires
affirmative statements to be placed on the ads. Even when
the FTC pursued a more “vigorous” case-by-case
enforcement in the 1980s, it resulted in issuing only four
complaints or consent orders, three of which “involved fringe
products like dehydrated vegetable pills and wheat germ oil
capsules.”[45] The weakness of the FTC standard is clearly
illustrated by the “surge” of private false advertising
lawsuits brought by competitors under section 43(a) of the Lanham
Act. According to Thomas C. Morrison, an attorney specializing in
false advertising litigation, “with the FTC’s virtual
abandonment of advertising regulation in the 1980s, the Lanham Act
has become the primary vehicle for enforcement of truth in
advertising.”[46]

Intellectual property law provides some limits on
how far manufacturers may go with their package designs. The Lanham
Act, state and federal anti-dilution statutes, and state common law
of unfair competition, for example, prevent manufacturers from
using competitors’ registered (and sometimes even
unregistered) trademarks on their packages. Trade dress law also
prevents copying of certain distinctive and nonfunctional package
designs. These laws do not pose much constraint on the
manufacturers, however. In fact, they enhance the power of
the packages to effect the consumers by preventing the dilution of
unique, eye-catching designs. The main pro-consumer aspect of these
laws is that discussed by William M. Landes and Richard Posner.
Trademark and trade dress, according to them, serve a signaling
function to consumers, reducing the cost of having to search for
the brand they like each time they buy a particular
product.[47] This is an argument of efficiency, not welfare.
The power of the packages to subtly influence the consumers has,
hence, been left alone, and perhaps even enhanced, by the existence
of intellectual property law.

The FDA’s Labeling Regulations

In light of the FTC’s weak control over
advertisements and the limited role of trademark/dress laws over
packaging, one recognizes the significance of FDA’s authority
over food labeling. The FDA requires that manufacturers
place information, consisting of numerous words and numbers, on
their packages – oftentimes in amounts that overshadow/dilute
the effect of package designs. The required information limits how
big and prominent the alluring images can be. The numbers, words,
and charts inject incongruity into what was intended to carry a
soothing appeal of fantasy. I will discuss below the labeling
requirements that FDA has imposed on food and cosmetic
manufacturers.

Section 403 of the Federal Food, Drug and Cosmetic
Act (“FD&C Act”) requires manufacturers to disclose
five types of information on food labels. The three simple
requirements that do not take up much room are the following: the
name of the food, the name and place of business manufacturer,
packer or distributor, and the net quantity of contents. The
statement of ingredients and nutrient content are the more complex
categories. According to the FD&C Act, all the ingredients must
be listed in descending order of predominance. Ingredients are to
be listed by their chemical names, instead of by their categories
or functions. According to section 403(i) of the FD&C Act,
however, spices, flavorings, and uncertified colors may be listed
generically. The only food ingredient that must be listed by both
chemical name and function are chemical preservatives.[48]

Food suppliers must also disclose the nutrient
information of their products on their packages. The current
detailed nutrition labeling regulations are enumerated at 21 CFR
§101.9. According to §101.9(c)(1) - (8), manufacturers,
except those who are specifically exempt, are required to provide
information on calories, fat (including saturated fat),
cholesterol, sodium, carbohydrate (including dietary fiber and
sugars), protein, and vitamins & minerals. Disclosure of more
specific information, polyunsaturated fat, monounsaturated fat,
potassium, soluble fiber, insoluble fiber, sugar alcohol, and
“other” carbohydrates is voluntary. The section
provides precise guidelines on what “serving” means and
how to format the information. The FDA may also require certain
nutrition information “to be highlighted by larger type, bold
type, or contrasting color.”[49]

Simply listing the above information is not enough
in FDA’s view; the information must be easily
noticeable . According to section 403(f) of the FD&C Act,
the required information must be “prominently placed thereon
with such conspicuousness (as compared with other words,
statements, designs, or devices, in the labeling).” The
information must appear on the packages’ most important
panels: the principal display panel or the information panel.
According to 21 C.F.R. §101.1, the principal display panel
refers to “the part of the label that is most likely to be
displayed, presented, shown, or examined under customary conditions
of display for retail sale.” The information must be placed
on the panel without “obscuring design, vignettes, or
crowding.” The letters and numbers may not be less than
one-sixteenth inch in height, unless the label of the package is
too small to accommodate all of the required information.[50] This standardization of size and location was
designed to prevent suppliers from manipulating with the
requirements.

Food manufacturers are also required to declare
certain warnings on their packages. Warnings against unsafe use,
especially of product containers, are often required. Ingredients
that are known to cause allergic reactions, such as FD&C Yellow
No. 5 and sulfiting agents, must also be disclosed on the food
labels.[51] Any foods containing ingredients that some people
cannot metabolize must also bear warnings on their packages. 21
C.F.R. §172.804(e)(2), for example, states that any food
containing aspartame must bear a prominent warning stating,
“Phenylketonurics: contains phenylalanine.”[52] Consumers must also be warned against the link of
saccharine to cancer as well as link of alcohol to birth defects
and impairment of one’s driving ability. In addition, foods
containing ingredients known to cause side effects, like sorbitol,
must bear warning statements.

The FDA requires similar disclosures for cosmetic
manufacturers. Section 602 of the FD&C Act requires them to
reveal the name of the cosmetic, the name and place of business of
the manufacturer, packer, or distributor, and a statement of the
quantity of contents. According to 21 C.F.R. §701.3, each
cosmetic label must also list each ingredient in descending order
of predominance, except fragrance or flavor, which may be listed as
just “fragrance” or “flavor.”

As in the case with foods, the above information
must be placed “prominently” with
“conspicuousness” on the labels, according to section
602 of the FD&C Act. And again, under 21 C.F.R. §701.3(b),
the letters of the listed ingredients must not be less than
one-sixteenth of an inch in height and must not be free of
“obscuring design, vignettes, or crowding.”

Cosmetic manufacturers, like food manufacturers,
must also state warnings against certain ingredients and uses.
According to sections 201(n), 601, and 602 of the FD&C Act and
21 C.F.R. §740.1, a cosmetic label “must bear any
warning statements that are necessary or appropriate to prevent a
health hazard that may be associated with the
product.”[53] Manufacturers are also required to state,
“Warning —The safety of this product has not
been determined,” when the safety of any cosmetic ingredient
or product has not been substantiated.[54] And under 21 C.F.R. §740.11, cosmetics in
self-pressurized containers must bear the warning, “Avoid
spraying in eyes. Contents under pressure. Do not puncture or
incinerate. Do not store in temperature above 120 F. Keep out of
reach of children....”

The areas on product packages that contain the
numerous disclosures discussed above provide valuable spaces of
truth that reduce the tantalizing effect of colors, graphics,
and images. Section 403 of the FD&C Act is designed to force
food suppliers to “tell the truth ”[55] about their products. Nutrition labeling allows
consumers to understand the “true ...value” of
the food they are eating.[56] Cosmetic ingredient labeling is designed to
“prevent the deception of consumers” and to contribute
to consumers’ “knowledgeable judgment
.”[57] The list of ingredients on a cosmetic package is
the only area where a consumer can “find out the truth
” about what s/he is purchasing; and becoming familiar with
the list “can help counter some of the alluring appeal
showcased elsewhere on the product.”[58] And with the FDA’s efforts toward
standardization, these spaces of truth are locked in –
in blocky, legible form, and on the most visible panels of the
packages.

The Expansion of Labeling Regulations

The FDA has required more and more information to
be placed on food and cosmetic packages as time passed. The
correlation of this increase with that of the power of the product
“image” displays, perhaps, the FDA’s
conscious battle to curtail this power.

The requirements for food labeling increased
tremendously since Congress passed the federal statute governing
the food supply in 1906. The 1906 Food and Drugs Act did not
require food manufacturers to state any specific information on
their packages[59] ; it was merely a broad statute prohibiting
the misbranding and adulteration of foods. The Gould Amendment of
1913 required manufacturers for the first time to disclose the net
quantity of contents on food packages. It was not until the
FD&C Act was enacted in 1938 that all of the following
information were required to be disclosed: the food’s name,
the list the ingredients, the net quality of contents, and the name
and place of business of the manufacturer, packer or
distributor.

More labeling requirements were put in place
between 1969 and 1989 when, according to Peter Hutt and Richard
Merrill, there was a “new emphasis on provision of adequate
information to consumers rather than on establishing rigid
standards for product composition.”[60] This shift of focus from food to information seems
to parallel the food manufacturers’ shift of focus from
product to advertising and packaging. As the manufacturers focused
increasingly on the packages, so did the FDA . In the 1970s,
the labeling requirements became more stringent. In 1973, for
example, the FDA promulgated 21 C.F.R. §101.22(j),
interpreting section 403(k) of the FD&C Act (which simply
requires that chemical preservatives be “stat[ed]” on
the label), to require that the preservatives be declared
“both by its chemical name and by a separate
description of its function.”[61] The FDA has also opted for specificity, and
against genericness. Section 403(i)(2) of the FD&C Act
originally permitted generic declaration of flavorings and colors
in the list of ingredients. In 1973, however, FDA
“promulgated complex regulations in 21 C.F.R. §101.22(g)
governing prominent label disclosure of natural and artificial
flavoring.”[62] Later in 1978, the FDA Commissioner asked the 100
largest food suppliers to “voluntarily label” the
specific colors that they use in their foods, pointing out that
“[o]nly through full ingredient disclosure can the consumer
exercise in full measure the fundamental right to choose to be
informed, and to be assured of safety.”[63] In 1990, the Nutrition Labeling and Education Act
(“NL&E” Act) amended section 403(i)(2) “to
require the declaration of all colors not required to be certified
under section 706(c).”[64]

Also between 1969 and 1989, new rules governing
food names were put in place. Manufacturers were to include, as a
part of the food name, “the percentage of nay characterizing
ingredients, or a statement that the food does not contain
ingredients that might otherwise be expected....”[65] Warning statements became a requirement as well
during this period. In 1973, the FDA promulgated a regulation
establishing warnings on food labels under section 201(n) of
FD&C Act. Since then, according to Hutt and Merrill, the number
of required and voluntarily-provided warnings has risen
significantly.[66] Also during this period, the location and type
size of the mandatory information on food labels were standardized
under 21 C.F.R. §101.2. Prior to 1973, the FDA based their
judgments “solely on the subjective impressions and informed
judgments of agency compliance personnel.”[67] The 1962 case, United States v. 46 Cases, More
or Less, “Welch’s Nut Caramels , 204 F. Supp. 321
(D.R.I. 1962) articulates subjective test used prior to the
standardization: “[T]he requirements of...section 403(f) are
met...if such statements are prominent enough to be seen and
understood by the ordinary individual who is interested in
discovering and learning the information disclosed thereby, and who
makes a minimum examination of the package....”[68]

Significant additions were made in the early 1990s
as well. The 1990 NL&E Act mandated that manufacturers list
all ingredients in standardized food. Under section 403(g)
of the FD&C Act, which the Act amended, “the label of a
standardized food need not declare any mandatory ingredients and
need declare only those optional ingredients that are prescribed by
the standard.”[69] The NL&E Act also required that manufacturers
of vegetable and fruit juice drinks disclose the percent of each
juice on the label’s information panel. The most significant
addition to the labeling regulations in the 1990s was, however,
nutrition labeling. The NL&E Act added 403(q) to the FD&C
Act, which “requires nutrition labeling for virtually all FDA
regulated food products.”[70] Prior to the Act, consumers had no
readily-available, standardized source to obtain their nutrition
information. Section 403(q), which is longer and more intricate
than most of the sub-sections of the FD&C Act, was quite a
breakthrough in labeling history.

The labeling requirements for cosmetics have
increased with time as well. Before 1976, manufacturers were not
required to bear ingredient lists on the packages. Ingredient
labeling requirement for cosmetics came nearly four decades later
than it did for foods, most probably due to the industry’s
and the regulators’ views that it is economically costly and
wasteful.[71] After years of “urging, petitioning,
rule-making, objecting, amending and litigating,” however,
cosmetic labeling became a reality in 1976.[72] The number of warning statements that are required
increased as well. In 1973, the FDA prescribed a warning statement
for feminine deodorant sprays due to the “reported adverse
reactions.”[73] And the FDA promulgated a regulation requiring a
warning about skin and urinary tract irritation from bubble bath
products in 1980.

The above developments show that as the industries
moved up a notch, the FDA did so as well. The expansion of labeling
regulations increased as the power of the “image” grew.
This implies that perhaps the FDA was on a mission to curtail that
power.

The FDA’s Effectiveness

All this work by the FDA seems to be paying off.
Recent studies and surveys show that consumers are paying more and
more attention to the food and cosmetic labels. The response has
been the most dramatic with regards to nutrition labeling.
According to the Food Marketing Institute and Prevention
Magazine’s “Shopping for Health” survey, 52% of
consumers in 1992 stated that they read the nutrition label when
shopping for a food for the first time. According to its 1995
survey, that figure increased to 61%.[74] The figure is even higher in a 1998 study
conducted in Washington state: 80% of the 1,450 adults surveyed
stated that they read nutrition labels on foods.[75] This increase in awareness has been manifested in
consumer behavior . According to a survey that the Food
Marketing Institute conducted in 1994, 32% of consumers reported to
eating less fat.[76] Not surprisingly, in 1994, “baloney sales
[were] down..., super premium ice cream sales [were]melting, and
peanut butter sales [were] off by 4%.”[77] Similarly, the Washington state survey also
indicated that those who read the nutrition labels have a lower
intake of fat.[78]

Studies also indicate that consumers have developed
a sense of trust in the FDA-regulated information on packages, and
a sense of distrust in everything else surrounding it. A 1980 FDA
survey showed that “the perceived
honesty/integrity/truthfulness of the food label is very
high,” compared to that of food advertisements.[79] According to a 1984 study, 57% of the surveyed
stated that labels on food packages were the most useful in
learning about the nutritional content of food, where as only 4%
stated that advertisements were the most useful.[80] The confidence has lasted throughout the years. A
July 1996 article in Food Labeling News stated that the
majority of consumers found the food label to be the most useful
source of nutrition information, followed by friends and
relatives.[81] Consumers feel, the article also points out, that
everything that is outside of the nutrition facts box, the
ingredient list, and other FDA-regulated information, is a
“form of advertisement and self-promotion.” As a
result, the consumers “don’t give it a lot of
credibility.”[82] People feel similarly about cosmetics. Consumers
feel that their “best friend” is the ingredient
label.[83]

All these surveys and studies show that the fancy,
colorful, and innovative designs in advertisements and packages are
having less and less impact on the consumers. The ingredient,
nutrition, and warning information consist of “words and
numbers, directed to the rational mind, while other facets,
consisting of shapes, colors, and graphic expressions, bypass the
rational an appeal directly to consumers’ emotions
.”[84] The rational, therefore, is being switched on,
while the emotional is being switched off.

A strong evidence of FDA’s effectiveness lies
in the manufacturers’ responses. Manufacturers seem to
understand the ability of the words and numbers to cut into the
appeal of the otherwise alluring and coherent packages. When
physicians in the 1950s testified that cosmetic ingredient labeling
would very helpful in treating and diagnosing patients, for
example, the cosmetic manufacturers opposed on the ground that
“a long list [of ingredients] affixed to the product would
destroy the attractiveness of the package.”[85] The impact of labeling regulations is also
unveiled by how cleverly the manufacturers are contriving to meet
the standards. Manufacturers, for example, are placing warning
statements in “condensed light-faced type that is difficult
to read,” and making unfavorable disclosures “among the
skinniest words in the language.”[86] In addition, companies are fighting back with even
stronger images. For example, during the mid-1990’s when
companies faced environmental concerns and corporate cost cutting,
they began selling their products in their primary containers
rather than in paperboard boxes. This move caused a problem for the
manufacturers because it reduced the surface area formally
available to place the list of ingredients, nutrition facts,
warnings, and other FDA-required information. To counter the
increased effect of the standardized letters and words, therefore,
the companies made the packages “more aggressive
visually ,” with bolder graphics and more distinctive
profiles.[87]

Conclusion: The FDA and Barbara
Kruger

The FDA “hope[s] to slow shoppers down, not
speed them up,” states Thomas Hine.[88] The FDA-required letters and numbers on the labels
cause us to pause, take a breath, give a thought before reaching
for the product. Oftentimes in blocky, black letters and numbers,
the information interrupts the alluring effect of the adjacent
images, and even brings out underlining ironies. In this way,
FDA’s work is closely related to the work of postmodern
artist Barbara Kruger. See figures on the last page.

Barbara Kruger is keenly aware of the formative
power of commercial images that surround us everyday and from every
angle. She understands their capacity to effect deep structures of
belief. She points to “the tendency to reduce the plural
spaces of lived life to surfaces, the shimmering expanses of the
movie, television, or video screen, the billboard, or magazine
advertisement.”[89] She knows that power implements its impositions
through the imagistic stereotype, the pose, leaving “the
other” passive to be constructed within the dichotomous
structures of whole/lacking. Her goal is to dismantle these
structures, to erode the rigidity of social norms, in order to
transform the passive “other” into an active viewer.
Kruger proposes to intervene in stereotypical representations,
disrupting their hold, and clearing a space for enlightened
awareness.

How does she do this? Instead of being manipulated
by the images, she manipulates the images themselves.
Recognizing that images are power, she uses them herself as her
arsenal. She chooses various images from different media sources.
These images are then cropped, enlarged, overprinted, and
juxtaposed with verbal statements. Her method of adding strident
words to the exaggerated stereotypical image creates fissure in the
process of identification. The image, against the assaultive and
contradictory words, no longer does what it aims to do to
“the other.” Thus, Kruger’s device is to (in her
words) “intercept the stunned silence of the image with the
uncouth impertinence and uncool embarrassments of
language.”[90] She creates a gap between image and text, clearing
a space for “the other” to roam. The
“place” of the viewer is ruptured as she uses various
pronouns, such as “I,” “me,”
“we,” and “you,” which act as shifters.
They work to dislocate the mastering effect of the image, showing
that the viewer’s place can shift, be indefinite, and refuse
alignment. In that mobility lies “the prospect of
counterlanguage” aimed against the images’
“shackling rigidification.”[91]

The nutrition facts, the list of ingredients, the
name and address of the manufacturer, and the warnings imposed on
the attractive containers, like Kruger’s disruptive phrases,
provide the consumers with a “counterlanguage.” The
information, like Kruger’s words, is in dark, plain, and
blocky letters - oftentimes enclosed in a white box with a black
border. It disrupts the allurement of the surrounding designs,
giving the consumers a chance to step back. In this respect, the
FDA is doing more than what it is traditionally thought to be doing
for our society. It is going far beyond making sure that foods and
cosmetics safe and that their containers truthfully labeled. A
“policeman,” it is, but one that has, consciously or
not, assumed an important cultural and a political role.

[59] The Food and Drug Act of 1906 did require food and
drug manufacturers to disclose few types of information. Section 8,
for example, ordered suppliers to disclose “the quantity or
proportion of any alcohol, morphine, opium, cocaine, heroine, alpha
or beta eucaine, chloroform, cannabis indica, chloral hydrate, or
acetanilid, or any derivative or preparation of nay such substances
contained therein.” It also required food articles to be
labeled “compound,” “imitation,” or
“blend,” if they met the words’ definitions.